ARTICLE · 14 DECEMBER 2015

Caution when employees are dismissed on medical grounds

Kemp Strang Lawyers

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Organisations must be very careful when dismissing employees due to illness or injury, to avoid unfair dismissal claims.

AustraliaEmployment and HR

Lisa Berton (Formerly With Kemp Strang Lawyers)

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Organisations must be extra careful when dismissing employees due to illness or injury, as demonstrated in two recent unfair dismissal cases with alternative outcomes.

In Mwakichako v BHP Billiton WAIO Pty Ltd [2015] FWC 3160, BHP Billiton WAIO Pty Ltd (BHP) was successful in defending an unfair dismissal claim commenced by an employee after he was dismissed for being unable to perform the inherent requirements of his position.

The employee was diagnosed with a work-related respiratory illness in 2012 as a result of exposure to hydrocarbons. After a period of workers' compensation leave, the employee performed a modified role between January and September in 2014. BHP then made it clear that the employee's ongoing employment was conditional upon the employee securing a permanent position and that it "would ultimately be up to [the employee] to find a suitable employment opportunity".

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